Siman 17

The judges must be careful that the two litigants appear equal in their eyes, as it is stated, "In righteousness shall you judge your fellow." What is the righteousness of the judgment? This is the equalizing of the two litigants in every matter: that he should not say to one, "shorten your words," and to the other he does not say this; or that he shows a more welcoming countenance to one than to the other and speaks to him softly, or shows to one a scowling face and speaks with him harshly. For in all these there is a concern that when he diminishes one, his arguments will be stifled, and likewise when he aggrandizes his opponent. But for both of them, he has the permission to say, "shorten" or "lengthen your words." And one shall not be sitting while the other is standing, but rather both shall stand. And if the beit din desired to seat both of them, they may seat them; but one shall not sit above in a distinguished place and the other below, but rather they shall sit side by side. And regarding standing, there is no concern as to the place where they stand, for there is no honor of place in standing. In what case is it said that he is permitted to seat both of them? During the time of the arguments and the deliberation of the law. But at the time of the conclusion of the judgment, when he tells them the verdict, both must stand ab initio. And likewise the witnesses, at the time their testimony is received, must stand ab initio. Also the litigants must stand at the time of the receiving of the testimony, as it is stated, "And the two men who have the dispute shall stand before Hashem." And this "two men" is superfluous; and furthermore, is it only men who come to judgment and not women? And furthermore, is it only two who come to judgment and not more? Rather, it refers to the witnesses; and "who have the dispute" are the litigants; and "before Hashem" refers to the judges; and the Torah required them to stand. And it refers to the conclusion of the judgment, just like the receiving of testimony regarding witnesses, for that is the conclusion of their matter. And ex post facto there is no concern, for this verse is only for a mitzvah and not a requirement. And furthermore, this verse refers to experts, and we are laymen and perform the mission of the earlier ones, as has been written in siman 1.

Standing by means of leaning, where one leans against a wall or a table, is considered standing regarding this matter. Similarly, it is considered sitting regarding this matter for the judges who are required to sit. And if the judges stand by means of leaning, which is considered sitting for them, the witnesses and the litigants must stand literally; for if everyone were to stand by means of leaning, it would be a contradiction, as for these it would be considered standing and for those sitting. And some say that for witnesses, literal standing is always required [Taz and Magen Avraham, Orach Chaim siman 141].

A talmid chacham and an am ha'aretz who come for judgment: we seat the talmid chacham and we say also to the am ha'aretz, "sit." And if he did not sit, we are not obligated to say to him a second time, for since they showed him honor with their statement, his arguments will not be stifled. And even if he sat and another came and stood him up, or even if the messenger of the beit din stood him up, there is no obligation upon the judges to seat him a second time, for he will say to himself, "Behold, the judges requested of me to sit, and the other did this of his own accord," and his arguments will not be stifled. And upon the arrival of the talmid chacham to the beit din, they are permitted to stand before him, for even the am ha'aretz knows that there is an obligation to stand before a talmid chacham at the beginning of his arrival; and since at the time of the judgment both are equal, his arguments will not be stifled. And so too, if one litigant is an elder, it is permitted to stand before him when he arrives, and all the people know that it is a Torah law, as it is said, "You shall rise before the aged," and the arguments of the opposing party will not be stifled.

And there is a doubt when one of the litigants sat down of his own accord without the command of the beit din, whether the beit din is obligated to make him stand or to seat the second, or perhaps since he acted of his own accord, the beit din does not attend to this, for in this case it is not applicable that the claims of the second will be stifled; on the contrary, the second will consider it impudence that he sat of his own accord. And so it appears primary for the law.

The Rambam and the Tur and Shulchan Aruch wrote in section 3 that all beit dins have already adopted the custom of seating the litigants and the witnesses in order to remove dispute, for we do not have the strength to establish the laws of the religion upon their foundation. Thus far their words. However, even so, it is the custom in many beit dins even now to stand the witnesses and the litigants, and all the more so at the conclusion of the judgment. And we have not heard that dispute arises from this. And the litigants themselves and the witnesses—anyone whom the fear of Hashem has touched his heart and whose ancestors stood at Mount Sinai—will be concerned for the honor of the Torah to fulfill that which is stated, "And they shall stand," etc., that the judges shall sit and they shall stand, for the judgment belongs to G-d.

If one side of the litigants is an individual and the second side is many, the individual can say, "I will not plead with all of you together, for I fear that because you are many, my arguments will be silenced." Therefore, the many must either select one of them to plead on behalf of everyone, or they shall plead one after the other if they do not all rely on one of them. And similarly, if one of the litigants wants his friends and relatives to be with him in the beit din, the second can protest, for perhaps they will hint to him to plead some falsehood, and also perhaps his arguments will be silenced. And even if he says to him, "You also take from your relatives and friends," nevertheless he can protest against him. And this matter depends on the will of the litigants, and if both of them agree to this, the judges cannot protest against them [Urim VeTummim].

It is written: "Hear the causes between your brothers and judge etc." From here we learn that the judge must hear the arguments when both litigants are standing before him, and it is forbidden to hear arguments from one when the second is not with him. In the Zohar, Vayeshev, it is written that any judge who accepts a word from a person before his fellow arrives, it is as if he accepts upon himself a foreign god etc. And regarding this it is said: "You shall not carry a false report," for the arguments of the first become fixed in his heart, and it is possible that from this the judgment will not emerge in its truth. And if it happened that one related his arguments before a scholar who did not know that he would be a judge in the matter, and afterwards they requested him to judge in this, the scholar must tell the second that he already heard the arguments of the first. And if despite this the second agreed, he is permitted to be a judge in the matter, for since this one accepted him upon himself, it is no worse than the acceptance of a relative or one disqualified. Furthermore, since he did not know that he would be a judge in the matter, the words were not fixed in his heart such that he would incline after them. And one who is a permanent judge, it is proper to be careful not to accept words from a person by way of a story when the judge understands that he has a din Torah in this, and he can say to the one telling him: "Know for yourself that by my hearing the story from you, it is impossible for me to be a judge in the matter." And just as it is forbidden for a judge to hear from one litigant not in the presence of his fellow, so too the prohibition applies to the litigant. Therefore, it is proper that both litigants come together before the judges, and one should not come earlier so that it does not appear as if he is arriving early to arrange his arguments. And if it happened that he came earlier, he should not sit with the judges. And even a student who has a case before his teacher should not arrive early unless he had a fixed time to study with his teacher, which is permitted, for in this there is no suspicion.

No sage should answer a questioner regarding monetary laws unless the questioner is a judge. However, he should not answer a litigant, or a relative or friend of a litigant. Even if the sage wishes to answer the law not as a final decision, but rather to answer that if the matter is such the law is so, and if the matter is such the law is so, it is also forbidden, so that he does not become like the legal counselors, and perhaps from his words he will learn to lie. Furthermore, perhaps afterward the second litigant will write to him the case in a different manner and he will need to change his ruling, and there is a degradation for the sage. But if the sage sees that in the absence of his answer a corruption will arise from this, such as if the questioner wishes to break the bonds of the conditions and if he does not answer him to forbid it he will break the bonds of the conditions, and similar to this, or if he does not answer a dispute will grow from this, or if through his answer he will save the oppressed from the hand of his oppressor, it is a mitzvah to answer since his intention is for the sake of Heaven.

The dayan must hear the claims from the mouth of the litigant himself, and if the litigant is not a man of words and appoints a representative in his place, it is permitted, and in siman 124 more will be explained regarding this. The dayanim must understand the language in which they claim, and even though he does not know how to respond in their language and appoints an interpreter to respond to them, it is permitted. However, if they do not understand their language at all and the interpreter translates for the dayanim what the litigants are speaking, they should not judge in this matter unless there are no other dayanim found in the city who understand their language, for then it is permitted [Urim VeTummim]. For this reason, it is the custom when those from the nations come to judge before dayanim of Israel who do not understand their language, that they judge them by means of an interpreter. The dayan must be careful when an Israelite and a non-Israelite come for judgment that the dayan should not speak with the Israelite in the Hebrew language which the non-Israelite does not understand, so that he should not suspect him of speaking with the Israelite to his detriment, and there would be a desecration of the Name of Heaven; rather, he must speak with both of them in the language of the non-Israelite. If the dayan cannot speak with the non-Jew in his language, he should speak with both of them by means of an interpreter, and one must be very careful in this because of the desecration of God, Heaven forbid.

If one of the litigants wants to speak in one language and the second wants to speak in another language, one cannot compel his fellow; but if of the two languages the dayan understands only one language, they must speak in the language that the dayan understands. And if a litigant has permission to plead in writing, it was explained in siman 13, section 8.

The judge must repeat the arguments before the litigants after having heard them from them, before he deliberates on the law, so that the hearts of the litigants do not smite them that perhaps he did not understand the arguments. We learned this from King Solomon, who said to the women who came before him for judgment: "This one says, 'My son is the living one,'" etc. When there are three judges, one of them must repeat the arguments, and afterwards they deliberate on the law and rule on the law. There are several beit din who are not careful in this, and perhaps they hold that this only applies to a single judge and not to a beit din of three, for with three there is no concern that they will not understand the arguments; however, the poskim did not make a distinction in this.

A dayan who adjudicated a case and his heart pricks him that he erred in the law should not exert himself to uphold his words; rather, he is obligated to return to all sides to bring out the law to its truth. It is better to be ashamed in this world than in the world to come. Furthermore, this is not a disgrace at all, for we have found great sages who retracted and admitted that what they had said previously was not so in the law.

At the time the litigants are pleading, the judge should remain silent and not assist them with words, so that he should not be like the legal counselors. He should not advocate for the words of the litigant, nor should he say to one of them, "Plead such and such." However, when he does not understand the words of the litigant, he must ask what their intention is. And when one of the litigants brings one witness, the judge should not say to him that one witness is only believed for an oath, because perhaps the litigant will admit to the witness. Rather, he should remain silent and ask the second one, "What do you respond to the words of the witness who testified against you?" And if he responds, "One witness is not believed," or if he says that he testified falsely, or if he says, "I do not know what to answer to this, I know that I am telling the truth," and the like, he rules according to the law to obligate him in an oath to contradict him. And so too regarding other pleadings, the judge must be careful not to cause ruin with his speech.

Nevertheless, this is not a rule for all matters, and sometimes the judge is obligated to speak and rectify the words of the litigant. For example, if he sees that the litigant is presenting a proper claim but does not know how to join the matters together, or that due to his foolishness or his anger he became confused in his statement, it is permitted and an obligation upon him to assist him and guide him on the path, for in such a case it is "open your mouth for the mute." However, much contemplation and composure of mind is required in this, so that he does not become like the lawyers. And for orphans, the judge must always plead for their merit, for the beit din are the fathers of orphans; and so too they plead for a purchaser.

A person, even when he is not a judge, must distance himself from being like the lawyers, which means that he should not teach one of the litigants arguments and say to him, "Claim thus and so," and "If your opponent claims thus, respond to him thus" [Rambam]. Similarly, one should not explain the words of one of the litigants to the judge [Rashi], even if they are not words of falsehood. Likewise, one should not advise one of the litigants to do something permitted in order that he may prevail in the judgment, such as in the case of orphans who are obligated to provide sustenance for their father's wife and she became ill, where the law is that medical treatment that has no fixed limit is included in sustenance, but that which has a fixed limit is not included in sustenance and she must pay for the treatment from her own property and not from the property of the orphans, as is written in Even HaEzer siman 79; one should not advise them to agree with the doctor on a fixed amount so that it will be at her expense, and similarly in other matters, for this too is included in the category of lawyers. However, if he is a relative of the litigant, he is permitted to do so since it is done in a permitted manner. But if he is a prominent person, he must refrain from this even when it is his relative [Ketubot 52b, 86a].

It is forbidden for a judge to show mercy in judgment toward a pauper, that he should not say: "He is poor and his litigant is wealthy and is obligated to support him; I will find him innocent in the judgment and he will thus be supported with dignity." Regarding this it is stated: "You shall not favor a pauper." Similarly, it is forbidden to honor the presence of a great man; for if a wealthy man and a sage come before him with a poor man and a commoner, he shall not honor him more than what is required by Torah law, and he shall not greet him so that the words of his litigant are not stifled. And he shall not say: "How can I find him liable in the judgment when he will be ashamed? Rather, I will exempt him and afterward I will tell him to give him what is his." Rather, he must immediately cut the judgment according to its truth, and regarding this it is stated: "And you shall not honor the presence of a great man." Similarly, when a righteous man and a wicked man come before him for judgment, he shall not say: "This one is wicked and his presumption is that he lies, and this one is in the presumption of fitness; I will tilt the judgment against the wicked man." Rather, the two litigants should always be in the eyes of the judge, when they contradict one another, as wicked men and under the presumption that each of them is lying, and he shall judge according to what appears to him from the words and from the matter. And when they are dismissed from before him and have accepted the judgment upon themselves, they shall both be in his eyes as fit men, and he shall judge each of them to the scale of merit.

The dayan must adjudicate the case immediately after it has become clear to him, for if he delays the judgment and prolongs matters that are clear in order to distress one of the litigants, behold, this is included in the prohibition of "You shall do no injustice in judgment."

When one of the litigants says to the other during his arguments, "If I wanted to, I would claim such and such from you and the law would be with me, but it is not my desire to claim this from you now," if the law is not as he says, the judge must say to him, "You are speaking a lie, for the law is not so." The reason is that we are concerned that since the judge will not state his ruling on this specific detail—given that he is not currently claiming it—the listener will mistakenly think the law is with him in this matter because of the judge's silence. Therefore, he is obligated to tell him immediately that the law is not so. However, regarding what arises during their arguments that requires a ruling, he does not need to say it now, but rather later in the ruling [Urim VeTumim].

Reuven who sues Shimon for a certain matter for a sum of money, and the judge sees that more is due to him for this claim, the judge should not rule for more than his claim. For presumably, every person claims all that he can claim, and no person waives his money for nothing; and since he did not claim it himself, reason inclines that no more than his claim is due to him, either because the plaintiff knows that he owes the defendant for some matter according to the sum exceeding the claim, or that he forgave him for some reason. And how can the judge obligate the defendant for more than what the plaintiff claimed from him? Therefore, if the judge ruled for more than his claim, it is an error in the law and the ruling is reversed. However, if the judge knows the plaintiff to be a God-fearing person and not expert in the law, and it is likely that he did not claim more because of his fear that he might stumble into theft, the judge may say to him: "Know that according to the law more is due to you." And in any case, if he forgave him or if he owes the defendant, he will say so to the judge since he is a God-fearing person; and if he says that he erred because he is not expert in the law, he is certainly believed. And so too, any merit that the judge sees for the plaintiff and he did not claim, if it is clear to the judge that the plaintiff did not sense this merit at all, the judge must say to him: "Know that you have a merit in this matter." And if it is not clear to him that he did not sense it, he must remain silent, unless the plaintiff is a God-fearing person, for then he may say to him and he will tell the truth since he is a God-fearing person [so it appears to me in the explanation of the words of our teacher, the Rema, at the end of this siman, and all that they questioned him on is settled, and study this].